Overview of Section 504 of the Rehabilitation Act of 1973 Developed by: Rodney C. Lewis Attorney at Law

I. Overview of Section 504

What Is Section 504? Section 504 is a federal civil rights statue that prohibits discrimination/harassment on the basis of a disability

What Does Section 504 Actually Say? “ No otherwise qualified handicapped individual … shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…” 29 U.S.C. Subsection 794 (1973 )

* SECTION 504 ENFORCED BY THE U.S. DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS (OCR) *VIOLATION OF SECTION 504 MAY ALSO SUBJECT AN INDIVIDUAL TO CIVIL LIABIITY Section 504 Enforcement

I.D.E.A. vs. Section 504 I.D.E.A. is a funding statute. I.D.E.A. requires the student to have one of thirteen specific disabilities. Section 504 is not categorical; but, covers any qualifying physical or mental impairments. Section 504 is a non-discrimination statute designed to provide equal opportunity. I.D.E.A. is designed to provide specialized instruction to enable the student to achieve at a level commensurate with his own ability. I.D.E.A. is limited to students with an educational need. Section 504 may cover students with no educational need such as a wheelchair bound student.

II. Determining Section 504 Eligibility

Section 504 Three Prong Eligibility Standard A Student who: Has a (1) physical or mental impairment which (2) substantially limits (3) one or more major life activities;

What is a Physical or Mental Impairment Under Section 504? Any physiological disorder or condition, cosmetic disfiguration, or anatomical loss. Any mental or psychological disorder. Section 504 does not define specific impairments. Examples include behavior disorders, ADD/ADHD, HIV/AIDS, diabetes, asthma, physical disabilities, allergies, hearing impairments.

What does “Substantially Limit” Mean Under Section 504? Determining whether an impairment is substantially limiting is critical to deciding Section 504 eligibility. Regulations fail to provide a definition for the term “substantial limits”. Case law establishes that “substantial limits” means unable to perform or significantly restricted in performing a major life activity as compared to the average student.

What Constitutes a “Major Life Activity” Under Section 504? Learning is not the sole major life activity that may qualify a student for services. Functions as caring for one’s self; Performing manual tasks; Other activities such as walking, seeing, hearing, speaking, breathing, learning and working.

What About Temporary Disabilities? Determination must be made on a case-by-case basis, taking into consideration the severity and the duration of the impairment. The physical or mental impairment at issue must be permanent or anticipated to be very long term. Temporary, non-chronic impairments should generally not trigger Section 504 eligibility, i.e., broken arm, surgery, temporary at-home medical status. Most temporary disabilities can be addressed via regular education services, i.e., homebound, make-up work, minor classroom/environment accommodations. Pregnancy is generally not a qualifying disability unless unexpected complications arise.

Points to Remember When Considering Section 504 Eligibility High standard to meet for Section 504 eligibility On the average, only 1-2% of the student population of any school is deemed Section 504 eligible. Learning difficulties not always due to a physical or mental impairment. Student will forever have a record of being divided. Section 504 eligibility is not for “at-risk” students. Phrase “substantially limits” is in present indicative verb form. Thus, student must be presently, not potentially or hypothetically, substantially limited.

Points to Remember When Considering Section 504 Eligibility Common regular education interventions may eliminate existence of a “substantial limitation”. Section 504 is not a consolation prize for students not qualifying for I.D.E.A. Consider all factors which may mitigate the impact of the student’s disability, i.e., glasses, prosthesis, medication, hard work, parental assistance. Standard is to compare student to an “average student”. This means you compare student against chronological peers in the entire state or country. Standard is not whether the student is reaching his own potential or parent’s expectations.

Points to Remember When Considering Section 504 Eligibility A student with average grades is probably not Section 504 eligible in the area of learning. Physician or psychologist opinion as to student’s eligibility status is only one source of information the team should consider. Remember, the team is making an educational decision not a medical decision. Physician or psychologist, while helpful in providing documentation of a physical or mental impairment, is not qualified to opine whether that impairment “substantially limits” a major life activity in a school setting. A mere medical diagnosis is not enough for eligibility. Students eligible under I.D.E.A. are not entitled to a separate Section 504 plan.

III. Examples of 504 Accommodations

Example of 504 Accommodations Seat child away from the doors/windows Group for cooperative learning Give both oral and written directions Ask frequent questions Simplify or shorten directions Reduce number of items on a task Highlight relevant words/features Increase allocated time Have student repeat directions Have student summarize at end of lesson

Example of 504 Accommodations Use timers to show allocated time Tape record directions Tape record student responses Use a study guide Provide daily and weekly assignment sheets Provide anticipated cues Provide visual cues Establish rules and review frequently Enlarge or highlight key words on test items Provide essential fact list

Provide pencil grips Put desk close to blackboard Tape paper to desk Repeat major points Call student’s name before asking a question Provide content/lecture summaries Use computer for writing tasks Use peer-mediated strategies (“buddy system”) Pause during speaking Use self-teaching materials Example of 504 Accommodations

IV.Tips For an Effective and Legally Compliant Section 504 Eligibility Meeting

A. Ensure That All Procedural Requirements Are Met Prior to Meeting –Notice to parent of evaluation, meetings, and notice of results/actions taken at 504 meeting. –Appropriate Team Membership - Parent - Persons knowledgeable about the child, meaning of evaluations, and placement options. –Parent Rights must be provided. –Parent Permission must be received prior to evaluation. –Ensure appropriate time limits are met. - Sixty day referral to eligibility timeline - Ninety day referral to placement timeline

B.Properly Prepare for the Section 504 Meeting School representatives and parents should organize and review all data prior to Section 504 meeting. Bring copies of all relevant medical records. Determine whether any initial evaluation/testing suggests the need for additional evaluations.

C.Section 504 team in determining eligibility should utilize data from a variety of sources Examples: –Health records –Standardized test scores/class test scores –Informal checklists –Report cards –Parent/teacher reports and observations –Student work samples/student input –Disciplinary records –Prior special education testing results (if student is not eligible for special education) –Cumulative records –All data considered by team must be documented. –Reason for referral must be appropriately addressed by evaluation data. –Good information guides accurate eligibility decisions.

D.Developing a Section 504 Plan Identify student’s disability, major life activity impacted, and educational impact of disability. Be sure that the accommodations are succinct and realistic. Indicate the exact amount of time when extending time for tests, and classroom/homework assignments.

E.Periodic Review The school should review a student’s Section 504 plan at least on an annual basis or upon any significant change in placement.

V. System Wide Procedural Safeguards Required by Section 504

A.Section 504 Local Grievance Procedure *Identification, evaluation, or placement decisions may be appealed by a written request *Mediation may be used to resolve areas of dispute *A Section 504 impartial hearing may be requested *After mediation or impartial hearing, a written decision must be provided to person making the appeal

B.Section 504 School Wide Compliance Requirements 1.Provide written assurances of non-discrimination wherever the LEA receives federal money. 2.Designate an employee to coordinate its efforts to comply with Section Adopt a grievance procedure to resolve complaints alleging any action prohibited by federal regulations. 4.Provide notice to students, parents, employees of nondiscrimination in admission or access to or treatment or employment in, its programs or activities.

SECTION 504 SCHOOL WIDE COMPLAINCE REQUIREMENTS cont. 5.Annually identify and locate all Section 504 qualified students (Child Find). 6.Annually notify persons who are disabled and their parents of the District’s responsibilities under Section Provide parents with procedural safeguards.

C.Section 504 Child Find Requirement The District has an affirmative duty to conduct a “child find” at least annually. District must “identify and locate” every qualified disabled child residing in jurisdictions including pre-schoolers, homeless, and those attending private school. Teachers and administrators must receive training on the identification of students suspected of having a disability.

Overview of Section 504 of the Rehabilitation Act of 1973 Developed by: Rodney C. Lewis Attorney at Law